Next Steps for Immigration Reform and Workplace Enforcement

Legislative efforts in immigration reform have died off since
the debate on the Comprehensive Immigration Reform Act of 2007
(S. 1348), but for the past several years, the Bush Administration
did considerable work in advancing immigration reform outside
the legislative process. One such effort was to enhance internal
enforcement of immigration laws. The new emphasis on enforcement
has resulted in a noticeable increase in the detention and
deportation of illegal immigrants. However, enforcement still faces
several obstacles before all immigration laws are successfully
executed. For improved enforcement to be an effective component of
immigration reform, the necessary resources must be available to
support a compassionate and responsible policy.

Where We Are

History argues strongly for making immigration enforcement in
the workplace an essential component of reform. In 1986, President
Ronald Reagan signed the Immigration Reform and Control Act (IRCA)
of 1986. The bill was essentially a comprehensive immigration
bill. It included amnesty for the illegal population of
approximately 2.7 million people, sanctions against employers that
hired illegal workers, and a temporary worker program similar to
the H-2A visa for seasonal agricultural workers.[1]

IRCA, like the proposed 2007 comprehensive immigration bill,
attempted to reform immigration to thwart illegal immigration. The
policy strategy failed for two reasons: Amnesty encourages future
immigrants to enter the U.S. illegally, and work on
immigration reform stopped after the bill was passed, with the
federal government doing nothing to implement employer verification
and immigration enforcement.

Until four years ago, it was an open secret that once inside the
United States, illegal immigrants could live their lives with
little fear of arrest or deportation. This was the mentality of the
illegal immigrant population when the Bush Administration
pledged to begin enforcing the law. As the number of worksite raids
and deportations rose, a wide array of complaints and criticisms
began appearing.

The massive increase in immigration arrests has led to an
overwhelming number of cases in the federal judicial system.
Critics note that the increased number of immigration cases has
overloaded the federal court system, leading to reduced
prosecutions of other types of crime, including organized
crime and white-collar crime.[2] However, the U.S. Department
of Justice should not be choosing to prosecute one crime over
another, but should be prosecuting all cases presented. Further,
arguments about immigration cases overwhelming the courts are
misdirected. Because so few immigration cases were prosecuted
before the renewed emphasis on immigration enforcement, enforcement
would inevitably increase the number of immigration cases
significantly. As part of this increased enforcement, Congress
needs to provide the Justice Department and the courts with
additional resources to enforce immigration law.

Similar concerns have also been voiced regarding state and local
law enforcement priorities, arguing that local law enforcement's
new focus on immigration enforcement takes away from the
policing of other, potentially more serious crimes. This may be the
case, but state and local governments have full authority to decide
their enforcement priorities. The U.S. federal system of government
allows local governments to decide to what degree they will
enforce immigration laws.

However, the most prevalent criticism is that enforcement is not
an aspect of immigration reform, but a tool of anti-immigrant
groups to limit overall immigration. A report by the National
Network for Immigrant and Refugee Rights claimed that the U.S.
government was perpetrating human rights violations against
immigrants and refugees in its enforcement of federal
immigration laws.[3]

The bulk of the media coverage of raids and enforcement paints
arrested illegal immigrants as the victims of undeserved and
excessive abuse. Reporting on the aftermath of raids describes
families that have been separated, illegal immigrants hiding
in their homes for fear of being caught, and mothers who are forced
to wear ankle tracking bracelets while caring for their children.
These critics accused the Bush Administration of being
anti-immigrant and xenophobic and called for a complete end of
immigration enforcement. Enforcement critics believe that
immigration reform can be achieved by simply improving temporary
worker programs.

Often these groups do not differentiate between illegal
immigrants and legal immigrants. They believe that illegal
immigrants are entitled to the same rights as those who are in the
U.S. legally. They portray enforcement actions taken against
illegal immigrants as acts against the entire immigrant population,
legal and illegal. Finally, they make the spurious assertion that,
by being tough on illegal immigration, the U.S. government is no
longer open to immigration in general.

This argument is disingenuous, especially since legal
immigration continues unabated into the United States. The U.S.
continues to admit more immigrants than most countries in the
world. In truth, the new enforcement efforts under the Bush
Administration were part of a bigger immigration reform strategy.
In addition to the new emphasis on policing illegal immigrants, the
Department of Homeland Security (DHS) and Department of Labor also
worked to streamline the H-2A and H-2B visas, simplifying the
application process for temporary workers.

Contrary to the critics' claims, enforcement is essential to immigration reform. Enforcement and
deportation are the only way to make the costs (and risks) of
illegal immigration outweigh the benefits. No potential temporary
worker program could, on its own, act as a sufficient incentive for
legal migration. Temporary worker programs place greater
restrictions on the visa holders, such as time limits on how long a
temporary worker can work in the United States. In addition,
temporary worker programs require employers to follow labor
and wage laws for visa holders, which make visa holders
significantly more expensive and time consuming to employ than
illegal workers.

Furthermore, the increase in illegal immigrants is not solely
due to undocumented people crossing the border. A significant
portion of illegal immigrants in the United States are individuals
who entered the country with valid visas but failed to leave before
their visas had expired. Overstays account for at least 31 percent
of the illegal immigrants in the U.S.[4] Interior enforcement is
the only method capable of dealing with these illegal
immigrants.

Over the past year, studies have found that the number of
illegal immigrants has declined from an estimated 12 million
illegal aliens in the summer of 2007 to between 11.2 and 11.4
million illegal immigrants as of July 2008.[5] This drop of almost
1 million illegal immigrants is the first significant decrease in
the past seven years.

The reason for the decline is not certain, but the increased
enforcement has undoubtedly played a role. The Pew Hispanic Center
noted that the heightened enforcement incited worry among
illegal immigrants and could have induced many to leave the
country on their own.[6] Most importantly, the study notes that, for
the first time in decades, the number of incoming illegal
immigrants is less than the number of immigrants entering the
country as legal permanent residents.

Understandably, the detention and deportation of illegal
immigrants have negative emotional consequences on those
directly and indirectly involved. Short of ending enforcement
entirely, the U.S. government needs to acknowledge these
hardships and make an effort to minimize them. The American image
is important, and enforcement should not give potential legal
migrants the impression that they would not be welcome.

The Obama Administration will need to find ways to enforce
immigration laws and bring accountability back to the system in the
most compassionate and humane way. Improving the
treatment of detainees is necessary. For example, experts
suggest language training for U.S. Immigration and Customs
Enforcement (ICE) agents to enable them to better communicate with
the detainees. In addition, quickly processing sole caregivers
would minimize the time that children spend without a parent.[7]

The Right Strategy for Reform

Immigration and workplace enforcement are only one component
that affects migration to the United States. Establishing a robust
and responsible immigration system and repairing America's broken
borders will require serious effort across the entire immigration
and border security system. Reform needs to be incremental and
designed to deincentivize illegal immigration, while
strengthening the capacity of employers to hire the employees they
need to help the economy grow and prosper without jeopardizing
the nation's security, sovereignty, and social fabric. Effective
change does not require Congress to pass a massive, comprehensive
bill. It could simply consist of sustained incremental efforts,
including:

Safeguarding the southern border. The U.S. porous border
makes illegal entry into the United States an easier and more
attractive option than the legal avenues. Conscious efforts should
be made to give the U.S. government greater awareness along the
border. The physical and technological fence is only part of the
solution. More border agents are needed, more technology
needs to be deployed, and federal authorities need to cooperate and
collaborate more with state and local law enforcement.

Promoting economic development and good governance in Latin
America. The lack of job opportunities in Latin America
encourages those desperate for work to enter the U.S. illegally.
Meanwhile, employers readily offer work to those who are here
illegally. This "push-pull" effect can only be addressed by
engaging both sides. Aiding Latin American countries in their
efforts for economic development will greatly reduce the
pressure for their citizens to come to the United States
illegally. In Mexico, it is vital that the U.S. help the Mexican
government combat the drug cartels that are trying to destabilize
it.

Enhancing the legal worker programs. The United States
has always been a destination for immigrants and requires a robust
and efficient visa system. Faulty visa programs have
encouraged many employers and immigrants to resort to illegal
immigration. The United States needs to provide legal avenues that
meet the needs of employers and immigrants and are a better option
than illegal immigration. This need is greater now that Europe is
creating aggressive visa programs to attract the world's best and
brightest.

Reforming U.S. Citizenship and Immigration Services.
Reforming U.S. immigration policy is one aspect of reform. However,
until the agency tasked with processing incoming immigrants is
reformed, little improvement will be made. As of now, the U.S.
Citizenship and Immigration Services (USCIS) could not handle
a surge of legal immigrants, in part because it has a faulty budget
model based on application fees. For USCIS to be responsive to
immigration reform, its revenue structure should be changed to give
the USCIS more flexibility. This can be accomplished by investing
in workplace enforcement and by establishing a national trust fund
to pay for programs for which the USCIS cannot charge fees
(for example, amnesty applications and naturalization of
military personnel).[8]

Enforcing immigration and workplace laws. For many
years, the government turned a blind eye to illegal immigration,
only reinforcing the incentives for foreigners to enter the country
illegally. The executive branch is responsible for
implementing laws passed by Congress, but immigration reform is
only possible if the government defends its laws. State and
local governments should continue to put in place mechanisms
to ensure that employers are not hiring illegal immigrants and to
crack down on those living in the country illegally.

The Change in Federal Effort

After many years of neglect, the Bush Administration began
judiciously enforcing the existing immigration laws to lay the
groundwork for the proposed comprehensive immigration reform
legislation in 2007, which would include a broad amnesty
provision. The effort was wider than just worksite arrests. It
included creating several initiatives to work with state and
local governments and created new programs and software for
worksite enforcement.

DHS will never be able to arrest every illegal immigrant in the
country. Yet if the government held businesses accountable for
their violations of immigration law by removing employees
determined to be here illegally and by punishing scofflaw
employers, those living here illegally would begin to leave on
their own as jobs became too hard to find to justify staying. More
importantly, future immigrants would use the legal avenues
available because the difficulty of finding a job would not
justify the cost of crossing illegally.

Worksite Enforcement

When the Bush Administration began enforcing immigration laws,
the frequency of worksite arrests jumped from 845 in fiscal year
(FY) 2004 to 6,287 in FY 2008.[9]

Worksite raids have been extremely controversial, greatly
tainting overall perceptions of immigration enforcement, even
though they affect only a minuscule percentage of aliens arrested.
In FY 2007, only 4,940 of the 1,210,772 total illegal
immigrants detained in 2007 were arrested through worksite
enforcement. The media has covered ICE raids with much
consternation, primarily due to the humanitarian concerns about
families being separated by deportation. The worksite raids can
cause the detainees' children, most of them U.S.-born citizens, to
suffer when their parents are detained and deported.

The worksite raids also disrupt local communities because
of the large number of people arrested. ICE has been conscious of
this and has attempted to find ways to target egregious abusers of
illegal workers while being compassionate toward the families
hit by deportation. ICE has started several initiatives to allow
families to stay together during the deportation process,
including opening the T. Don Hutto Residential Detention Center,
which is a 512-bed facility that allows the family to stay together
during the detention and removal process.[10] In addition, ICE allows
the release of sole caregivers from detention facilities.[11]

However, because ICE prefers to keep families together, some
parents do not report to ICE officers that they have children for
fear of the children also being deported. A study found that half
of detainees have children, making this a serious concern for ICE.
To ensure a proper degree of care and compassion, ICE
should:

Coordinate with the local communitybefore and after
raids, including working with schools, social services, and
churches to ensure that no children are being left behind.

Quickly release sole caregivers to minimize the time
that children of single parents are left in the care of
others.

Working with State and Local Law
Enforcement

Workplace raids do not have a directly significant effect
on the total number of illegal immigrants present in the
United States. ICE is a small agency, and it is responsible for
enforcing immigration law as well as U.S. customs law. Because
of its relatively small size, partnerships with state and local
governments are essential for effective internal
enforcement.

Beginning in 2002, ICE began partnering with local law
enforcement agencies under a cross-designation program
authorized by Section 287(g) of the Immigration and Nationality
Act. This program allows local law enforcement officers to enforce
immigration laws. In a 287(g) partnership, a memorandum of
agreement (MOA) between ICE and the local law enforcement agency
outlines the authority given to the local officers. ICE agents
closely monitor activities under the 287(g) program, and
localities are required to report any immigration-related
enforcement work to ICE supervisors. Participating law enforcement
officers are also required to attend a four-week training course
and must meet basic requirements, including U.S. citizenship and a
minimum of two years of work experience.

In the past several years, the cross-designation program has
been extremely popular with state and local law enforcement
agencies. ICE has 67 active MOAs and has received many additional
requests for 287(g) partnerships. Yet ICE has found that the 287(g)
partnerships are not ideal for many local jurisdictions. To meet
their needs, ICE Agreements of Cooperation in Communities to
Enhance Safety and Security (ICE ACCESS) was created to provide a
menu of different programs that allow the federal government to
partner with and support local law enforcement officers in
enforcing customs and immigration laws.

The ICE ACCESS menu includes:

Asset forfeiture/equitable sharing, in which money
seized by ICE agents from criminal activities -- such as money
laundering, drug trafficking, and bulk cash smuggling -- can be
disbursed to the state and local law enforcement agencies that
aided in the investigation and prosecution.

Border Enforcement Security Task Force (BEST), which
works with other law enforcement agencies to identify,
disrupt, and dismantle criminal organizations at the border. Eight
of the 10 task forces are deployed on the southern border. In
FY 2007, BEST made 516 criminal arrests and 1,037 administrative
arrests and seized thousands of pounds of drugs, including 1,326
pounds of cocaine.

Criminal Alien Program (CAP). CAP uses a risk-based
approach to identify criminal aliens in federal, state, and local
prisons and to remove them from the country before they complete
their sentences. In FY 2008, CAP was responsible for
identifying 221,000 criminal aliens in jail.

Customs cross-designation. This gives federal, state,
and local law enforcement officers the ability to enforce U.S.
customs laws. This is helpful for missions such as narcotics
smuggling and human trafficking. There are about 800
participating officers.

Document and Benefit Fraud Task Forces, whichtarget and
seize illicit profits from fraud committed with the intention of
undermining U.S. immigration laws.

Fugitive Operations Teams (FOTs), which find and remove
fugitive aliens, who have committed a crime and have failed to
appear at their immigration hearing or leave the country after
receiving final orders. In 2007, FOTs made more than 30,000
fugitive alien arrests.

Law Enforcement Support Center, whichis a 24/7 center
that assists federal, state, and local law enforcement by providing
information from eight DHS databases, including an alien's
immigration status and identify information.

Operation Community Shield. Under this initiative,
ICEpartners with federal, state, and local law enforcement to
investigate and stop street gangs.

Operation Firewall. This operation targets bulk cash
smuggling, which is generally an illegal attempt to move $10,000 or
more into or out of the United States. ICE works with state and
local law enforcement officers to stop smuggling internally,
with U.S. Customs and Border Protection to stop smugglers at ports
of entry, and with Mexican law enforcement to stop "the smuggling
of U.S. currency through Mexico to Central and South America."[12]

Operation Predator. This initiative identifies child
predators and removes them from the United States. ICE also works
with foreign countries to stop international sex predators and
sex traffickers. Since 2003, this program has led to more than
11,000 arrests.

Rapid Removal of Eligible Parolees Accepted for Transfer
(Rapid REPAT), which allows the release of nonviolent criminal
aliens before they finish their sentences if they are deported from
the United States and agree not to return.

Secure Communities supplements the CAP program by
beginning an initiative to remove all criminal aliens in prison,
broadening the targeted methods used by CAP. Secure
Communities will use technology to share information with
different law enforcement agencies and with federal, state, and
local prisons.

Cooperation with local law enforcement has drawn accusations
that local police departments are overzealously enforcing
immigration laws, targeting anybody who "looks and sounds" foreign.
These claims are not a fair representation of the enforcement
effort. The MOAs between ICE and local agencies specifically
prohibit local officers from arresting people solely on the
suspicion of being an illegal immigrant. For an arrest to be made,
a person must first be stopped and held for breaking another state
law. A traffic stop, such as for speeding, does not warrant a
criminal arrest and cannot result in an arrest for an immigration
violation.

On the state and local levels, ICE ACCESS has been extremely
popular. It allows localities to take action on illegal immigration
if they wish to do so. ICE has received more requests for
partnerships than it can answer. Congress would be wise to
appropriate additional resources to allow the ICE ACCESS program to
grow.

Detention and Removal

The government used to "catch and release" illegal
immigrants. When an illegal alien was caught, rather than being
detained and deported, the person was released back into
society with a scheduled court date before an immigration judge. No
enforcement activity ensured that these illegal immigrants appeared
in court, and not surprisingly, many did not appear for their
hearings.

This practice of catch and release reaffirmed the notion that
illegal immigrants would not be deported, because even those
unfortunate enough to be arrested were simply released later. Over
the years, the number of absconders -- those who received final
removal orders and failed to leave -- increased steadily from
331,734 ordered to leave in 2001 to 536,644 in 2005.[13]

Detention and removal is conducted by the Office of Detention
and Removal (DRO) in ICE. Arrested illegal immigrants are removed
under several different processes. In 2006, DHS announced the end
of catch and release at the southern border and implemented the
"catch and return" policy, in which those arrested while attempting
to cross the border illegally are detained until they are returned
to their points of origin. These detainees are returned home under
expedited removal, which allows ICE to remove an illegal immigrant
without administrative or judicial review.[14] Under expedited
removal, an alien is detained for an average of 19 days,
significantly shorter than the traditional 90 days.[15] El
Salvadorans are exempt from expedited removal because of a court
ruling 20 years ago during the El Salvador civil war.[16]

Those arrested internally go through the traditional
detention process or voluntary departure. Aliens who are arrested
are sent to a detention center. If they are from Canada or
Mexico, they have the option of leaving voluntarily and forgoing
the formal deportation process. A large majority of deported aliens
elect for voluntarily return. In 2007, there were 891,390 returns
compared to the 319,382 removals.[17] An alien who opts out of
voluntary departure or is not from Canada or Mexico goes
through the formal deportation process. The alien attends a court
hearing before an immigration judge, who either issues a final
deportation order or allows the alien to stay in the United
States.

Since the end of catch and release, detained illegal
immigrants stay at a detention center for the entire process, which
can amount to 90 days.[18] While at the detention center, a detainee
receives an initial health check within the first 12 hours at the
facility, followed by a health appraisal within the first 14 days.
Those requiring medical attention receive treatment. The person is
then removed from the United States. Criminal aliens who are
arrested first go to jail and then are sent to a detention
center for removal.

With the increase in worksite arrests, the growth of ICE ACCESS
agreements with local jurisdictions and implementation of the
detention and removal policy, the number of arrested aliens has
multiplied. The process is far from perfect. ICE currently has
eight detention centers with 32,000 beds, which can handle only a
fraction of the 1 million illegal immigrants detained each year.[19] In
an effort to address the lack of capacity, ICE plans to add an
additional 1,000 beds in 2009 and has used bed space at state,
local, and private jails.

The increase in detention facilities has raised concerns about
oversight of detention standards in both procedures and the health
of detainees. ICE has since instituted the Detention Facilities
Inspection Group to ensure that detention facilities are
following standards. Detention centers now receive annual
inspections, and ICE plans to publish semi-annual reports on their
detention facilities and compliance. The National Detention
Standards were also reviewed and updated.[20]

Finding enough bed space for all the detained illegal aliens is
only half of the problem. ICE does not have enough agents and
resources to oversee all deportations. A DRO officer must file
paperwork and oversee all arrested and detained illegal
immigrants, even those arrested by local law enforcement
agents. Local sheriffs' offices have complained that ICE can no
longer pick up arrested aliens and that ICE is asking law
enforcement officers to release them.

One can only hope that a released illegal immigrant does
not later commit a terrorist act, such as two of the attackers on
September 11, 2001, did after their brush with local law
enforcement. Regrettably, tragic stories of citizens killed by
illegal immigrants who were driving while intoxicated and who had
previously been arrested and released are common.

ICE has not even been able to remove every identified
illegal alien, including criminal aliens. A report on the Harris
County Jail in Houston, Texas, found that ICE had not filed
paperwork to remove 75 percent of the 3,500 criminal aliens in
jail. This is troublesome considering that some estimates
suggest that up to 450,000 inmates in the U.S. are
illegal aliens and ICE screens only 10 percent of jails for
illegal immigrants.[21] Criminal aliens should not be released
from prison back into American society.

The federal government clearly lacks sufficient capacity to
remove all caught illegal immigrants. ICE needs more agents and
money to oversee and manage the process. More broadly, the
federal government needs to employ smarter strategies to
remove all detained aliens in a reasonable and compassionate
manner. ICE should specifically consider:

Innovative ways to remove aliens. The Scheduled
Departure Program is a good example of initiatives that lessen
the pressure on DRO officers and ICE and allow those illegally
living in the United States to leave in a respectful and orderly
fashion. As a pilot program in August 2008, it allowed fugitive
aliens to depart voluntarily without being taken into custody.[22]
Persons electing to leave voluntarily were not detained and were
allowed time to arrange their personal and family affairs before
leaving the country. The Obama Administration should consider
reinstituting Scheduled Departure and create new programs
that encourage voluntary departure.

Greater use of the expedited removal. Under the
Immigration and Nationality Act, all noncriminal inadmissible
aliens are eligible for expedited removal, yet it is used only
for those caught near the border or those from Mexico or Canada.
Applying expedited removal to a greater percentage of
detainees, including most administrative arrests would lessen the
burden and allow ICE agents to focus on removing criminal
aliens.

The DRO cannot tackle this task alone. State and local law
enforcement plays an important role in improving deportation
capabilities.

Closer coordination with state and local law
enforcement. Ifstate and local law enforcement forewarned ICE
about planned arrests, DRO officers could plan and prepare for
additional detainees. With more notification, ICE can better
identify localities of interest and allocate resources to deport
illegal immigrants detained by local and state law
enforcement.

Employer Verification

Of the more than 11 million illegal immigrants, an estimated 5
million came to the U.S. to work. Thus, effective immigration
enforcement must include mechanisms for employer verification.[23]
This theme has emerged in several past immigration bills. In 1986,
the IRCA bill made it illegal to knowingly hire illegal
workers. In 1996, the Illegal Immigration Reform and Immigrant
Responsibility Act created the Employment Eligibility Verification
System (EEVS), a program for employers to check worker
eligibility. EEVS was initially implemented in five states as a
pilot program, but later expanded to all 50 states on a voluntary
basis.[24] Not surprisingly, no serious effort
was made to verify the legality of workers or to sanction
employers that hired illegal immigrants.

An illegal immigrant can find work in the U.S. by using three
methods:

Under a fictitious Social Security number. Anillegal
immigrant can work "on the books" under a fictitious Social
Security number. The employer uses the fabricated information to
file a W-2 for the employee and fill out an I-9 form. The employer
may or may not be aware that the number or information is
fictitious.

Under a stolen identity. Illegal immigrants can also
work "on the books" by providing stolen identity information to the
employer.

"Off the books." Off-the-booksemployment, in which the
employer does not file a W-2 or I-9 form, accounts for
approximately 50 percent of working illegal immigrants.[25]

Efforts by the Bush Administration to improve internal
enforcement included implementing new measures for employer
verification, including the ICE Mutual Agreement Between Government
and Employees (IMAGE).

IMAGE is a voluntary program for companies that wish to verify
that their employees can legally work in the United States. For a
company to be IMAGE-certified, it must receive training from ICE on
hiring procedures, detecting fraudulent documents, and using
E-Verify.[26] In addition, companies must also undergo
an I-9 audit and check the legitimacy of existing employees'
Social Security numbers. The program currently has 27 full
members.[27]

The Bush Administration also launched a campaign to
encourage the use of E-Verify (formerly the Basic Pilot/Employment
Eligibility Verification Program). E-Verify allows employers
to confirm that their newly hired employees are eligible to work in
the United States by verifying their information on a Web-based
system run by DHS and the Social Security Administration
(SSA). Employers enter information, such as the employee's
name, date of birth, and Social Security number into the E-Verify
program. The information is then cross-checked with SSA
databases to ensure that the Social Security number is valid. If
the person is not a U.S. citizen, the information is checked
against the USCIS database to verify the person's eligibility
to work in the U.S. In June 2008, all federal contractors were
required to use E-Verify. More than 87,000 employers are using
E-Verify.[28]

Regrettably, E-Verify and IMAGE cannot attain comprehensive
employment verification. The IMAGE program is much too small, and
greater participation is not feasible because ICE could not manage
significant growth in IMAGE membership because of the training
and certification requirements.

E-Verify is being used across the country, and Arizona and other
states have passed legislation requiring all employers to use
E-Verify. The wide use of the program is a step in the right
direction for employer verification. Regrettably, E-Verify cannot
catch identity fraud. Thus, additional methods of verifying legal
employment are needed.

These should include:

Sharing Social Security no-match data. The federal
government mails out no-match letters when information provided by
employers does not match data in the SSA database. A majority of
SSA no-match letters are in response to illegal immigrants.[29]
SSA should be authorized and directed to share the no-match data
with DHS. This would allow DHS to target its enforcement efforts on
large-scale abusers. The data also contain information showing
that multiple people are using some Social Security numbers -- an
indication of people using identity theft to work.

Rolling out Real ID. Congress has passed two bills that
set Real ID standards for driver's licenses in all U.S.
jurisdictions. The Real ID legislation does not create a
federal identification card, but it does set minimum security
standards for driver's licenses. All states have either agreed to
comply with these standards or have applied for an extension of the
deadline. Secure identification cards will make fraudulent
documents more difficult to obtain and will also simplify
employers' efforts to check documents when verifying employer
eligibility. Real ID is a sensible protection against identify
fraud.

State and Local Initiative

The effort to reduce illegal immigration has not come solely
from the federal government, nor should it. State and local
interest in addressing illegal immigration is evident from the
large number of jurisdictions applying for 287(g) partnerships and
ICE ACCESS cooperation. However, in many cases, local law
enforcement is hesitant to become involved in arresting illegal
immigrants because such individuals often cooperate with local law
enforcement to shut down gang and drug activity. Such decisions
should be made locally.

Lost in the debate is the ability of states and localities
to enact employment, housing, identification, and other non-law
enforcement measures to discourage illegal immigration in
their jurisdictions. A handful of states and localities have even
passed laws to apply pressure on illegal immigrants and the
businesses that employ them in their respective areas. Yet many
jurisdictions are hesitant to act because such actions provoke a
legal onslaught from pro-illegal immigrant groups, such as business
groups that want cheap labor and race-based groups that want more
members. In tough fiscal times, most states and localities lack
additional funds to cover costly legal expenses.

The most notable case involved the Legal Arizona Workers
Act (LAWA), which the state legislature passed in 2007. The
law requires all employers in Arizona to use E-Verify and made
hiring illegal immigrants unlawful. The constitutionality of LAWA
was challenged first in federal district court in Arizona, where it
was upheld. The case was then appealed to the liberal U.S. Ninth
Circuit Court of Appeals, which also found LAWA constitutional,
much to the surprise of most observers. This decision provides
other states with a solid legal basis from which to pass stronger
enforcement laws and should minimize costly legal challenges. Other
jurisdictions have passed similar laws including Valley Park,
Missouri (upheld in federal district court), Hazelton, Pennsylvania
(on appeal to the Fourth Circuit), and Oklahoma (delayed due to an
injunction).

States and local government can do more. For example, they
could:

Require all businesses to use the E-Verify system for
employment, financial, and housing transactions;

Suspend business licenses for businesses that employ
unauthorized aliens;

Require business filings and business tax returns to include an
attestation from the employer that it did not employ unauthorized
aliens in the past 12 months and make filing a false attestation a
felony;

Require state income tax returns to include an attestation
from the filers that they did not employ unauthorized aliens in the
past 12 months and make it a felony to file a false
attestation;

Make it a felony for unauthorized aliens to work, punishable by
imprisonment and a fine; to falsely claim legal presence in the
United States; or to smuggle aliens;

Make it a crime to rent, lease, or sublease living space for
use by unauthorized aliens;

Prohibit sanctuary cities and day-labor sites;

Mandate the use of the Systemic Alien Verification for
Entitlements system to verify eligibility for all state and local
government benefits;

Restrict unauthorized aliens' access to nonessential
public benefits and services;

Prohibit tax deductions for business expenses related to
unauthorized aliens;

Institute a withholding tax on all electronic funds wire
transfers to foreign parties, negotiable bank drafts, and
international money orders without a valid Social Security
number;

Ban the use of foreign identification documents to establish
identity or to obtain state identification cards unless
accompanied by a U.S. document that demonstrates legal
presence in the United States; and

Restrict the use of taxpayer identification numbers for
purposes not authorized by the Internal Revenue Service, including
identification, unless accompanied by a U.S. document that
demonstrates legal presence in the United States.[30]

The federal effort in internal enforcement can easily vary with
different Administrations and budgets. Local governments will
continue to bear most of the burden of illegal immigrants and
should have the right to determine the best mechanisms to deal with
it in their jurisdictions.

Moving Forward on Internal
Enforcement

Federal, state, and local governments have made tremendous
progress in enforcing immigration laws. The Obama Administration
should not allow the situation to revert to the previous era of lax
enforcement. It should continue to improve internal enforcement to
ensure efficacy and compassion. Specifically, the Administration
should:

Improve detention and removal. The government needs
to continue to enforce immigration law and to completely end the
practice of "catch and release." ICE needs to find innovative ways
to move illegal immigrants expeditiously through detention centers.
Using initiatives like Operation Scheduled Departure and expedited
removal could greatly increase the DRO's ability to process illegal
immigrants.

Foster greater cooperation with state and local
governments. ICE cooperation with state and local governmentsis
the only feasible way to successfully enforce immigration laws. ICE
ACCESS is an extremely popular program and should receive the
funding to meet the incoming partnership requests from local
jurisdictions. Greater cooperation also entails state and local law
enforcement communicating more with ICE to allow seamless
cooperation in detaining and removing illegal immigrants.

Successful reform of U.S. immigration laws will require
accountability by federal, state, and local governments. Without
enforcement, the illegal immigrant population will continue to
grow, and ICE and Border Patrol agents will find it
increasingly difficult to focus on real threats.

Diem Nguyen is a Research Assistant
in the Douglas and Sarah Allison Center for Foreign Policy Studies,
a division of the Kathryn and Shelby Cullom Davis Institute for
International Studies, at The Heritage Foundation. Matt A. Mayer is a Visiting
Fellow at The Heritage Foundation, President and Chief Executive
Officer of Provisum Strategies LLC, and an Adjunct Professor at
Ohio State University. He has served as Counselor to the Deputy
Secretary and Acting Executive Director for the Office of Grants
and Training in the U.S. Department of Homeland Security. James Jay Carafano,
Ph.D., is Assistant Director of the Davis Institute and Senior
Research Fellow for National Security and Homeland Security in the
Allison Center at The Heritage Foundation.

[3]Human Rights Immigrant Community Action
Network, "Over-Raided, Under Siege: U.S. Immigration Laws and
Enforcement Destroy the Rights of Immigrants," National
Organization for Immigrant and Refugee Rights, January 2008, at
/static/reportimages/F1E07E7D77B1BA66B02A195D5F71851B.pdf (February
4, 2009).

Share

Immigration reform will require a sustained, incremental effort tosecure the border, improvements in the legal worker programs, andsupport for economic development in Latin America. Internalenforcement is the only mechanism that can discourage illegalimmigration and persuade future migrants and employers to use theavailable legal avenues. This will not be feasible withoutmethodical enforcement that brings legitimacy back to U.S.immigration law.

Key Points

1 Immigration reform will require a sustained,
incremental effort to secure the border,
improvements in the legal worker programs,
support for economic development in Latin
America, and, especially, continued efforts by
the Obama Administration to enforce U.S.
immigration law.

2 Internal enforcement is the only mechanism
that can discourage illegal immigration and
persuade future migrants and employers to
use the available legal avenues. Immigration
reform will not be feasible without methodical
enforcement that brings legitimacy back
to U.S. immigration law.

3 Internal enforcement needs to be reformed
to ensure that it is conducted efficiently and
in a compassionate manner.

4 Immigration reform is best accomplished in
accordance with the principles of federalism.
Allowing state and local communities to
actively participate in specific immigration
enforcement activities is the logical option.

Key Points

Immigration reform will require a sustained,
incremental effort to secure the border,
improvements in the legal worker programs,
support for economic development in Latin
America, and, especially, continued efforts by
the Obama Administration to enforce U.S.
immigration law.

Internal enforcement is the only mechanism
that can discourage illegal immigration and
persuade future migrants and employers to
use the available legal avenues. Immigration
reform will not be feasible without methodical
enforcement that brings legitimacy back
to U.S. immigration law.

Internal enforcement needs to be reformed
to ensure that it is conducted efficiently and
in a compassionate manner.

Immigration reform is best accomplished in
accordance with the principles of federalism.
Allowing state and local communities to
actively participate in specific immigration
enforcement activities is the logical option.

Rep. Peter Roskam (R-IL) says it's "a great way to start the day for any conservative who wants to get America back on track."

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